Facing the FACT Act: Abortion and Free Speech (Part I)

Facing the FACT Act: Abortion and Free Speech (Part I)

Legal Sidebari

Facing the FACT Act: Abortion and Free
Speech (Part I)
Updated July 26, 2019
Update: For a discussion of the Supreme Court’s June 26, 2018 decision in NIFLA v. Becerra holding
that the FACT Act likely violated the First Amendment, see CRS Report R45316, Supreme Court October
Term 2017: A Review of Selected Major Rulings, coordinated by Andrew Nolan. On October 26, 2018,
the parties in NIFLA stipulated to an injunction and dismissal of the case, and the district court
permanently enjoined the state and local defendants from enforcing the FACT Act. No. 3:15-cv-02277
(S.D. Cal. Oct. 26, 2018), ECF No. 76.
The original post from January 10, 2018 is below.
On November 13, 2017, the Supreme Court granted a petition to review National Institute of Family and
Life Advocates (NIFLA) v. Becerra, a case that implicates several distinct and complex First Amendment
doctrines. Specifically, the Court will consider whether a California law providing information that
certain pregnancy centers must disseminate to clients violates the Free Speech Clause. The Ninth Circuit
previously upheld the California law, deepening a circuit split that raises questions beyond the highly
charged context of family planning and pregnancy-related services. Part I of this two-part Sidebar
provides an overview of the challenged law, followed by an analysis of how the Supreme Court might
categorize the speech at issue. Part II discusses the potential implications of any Supreme Court decision
in NIFLA for First Amendment jurisprudence and legislatures seeking to regulate in this area.
Background. NIFLA involves a challenge by an anti-abortion, nonprofit organization and two of its
member pregnancy centers (the NIFLA challengers) to California’s Reproductive Freedom,
Accountability, Comprehensive Care, and Transparency (FACT) Act. The FACT Act imposes two
requirements on certain providers of family planning or pregnancy-related services. First, covered state-
licensed facilities—generally, outpatient clinics—must notify clients on site that “California has public
programs that provide immediate free or low-cost access to comprehensive family planning services
(including all FDA-approved methods of contraception), prenatal care, and abortion for eligible women,”
along with the telephone number of the county social services office. Second, unlicensed covered
facilities—generally, those without a state license or a licensed medical provider supervising their
operations—must provide a notice on site and in any advertising materials that the facility “is not licensed
as a medical facility” and has no licensed medical provider rendering or supervising its services. The Act
exempts federal clinics and certain providers that are enrolled in the State’s Family Planning, Access,
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Care, and Treatment (Family PACT) program. The Act also specifies how covered facilities must display
or distribute the notices (e.g., size and language requirements). Finally, the law imposes monetary
penalties on any facility that fails to comply within thirty days of receiving a notice of violation.
How the Court characterizes the NIFLA case will almost certainly portend its ultimate outcome. As
discussed in more detail below, the Court will likely ask whether NIFLA, at bottom, is a case about:
 An abortion regulation that the Court should square with its other decisions in that arena;
 Compelled speech on the subject of abortion;
 A law that targets only pregnancy centers that oppose abortion;
 A state’s authority to regulate the medical profession;
 A commercial speech regulation aimed to prevent deception; or
 A restriction on the political speech of a nonprofit advocacy group.
The remainder of Part I of this post provides a glimpse through each lens.
Abortion Regulation? The Supreme Court’s current abortion jurisprudence, based largely on a plurality
opinion in the 1992 case Planned Parenthood v. Casey, is centrally concerned with whether a given
regulation violates the substantive component of the Fourteenth Amendment’s Due Process Clause by
imposing an “undue burden” on a woman’s decision to terminate her pregnancy. Among other things,
Casey involved a challenge to Pennsylvania’s informed consent requirement, which mandated that a
doctor provide a patient with certain information before performing an abortion, including notice of the
availability of state publications listing agencies that offer alternatives to abortion and information on
medical assistance benefits for childbirth. Finding no undue burden, the plurality proceeded to reject a
First Amendment challenge as well, concluding that while the informed consent requirement “implicated”
a doctor’s constitutional right “not to speak,” it did so “only as part of the practice of medicine, subject to
reasonable licensing and regulation by the State.”
In the wake of Casey and other Supreme Court cases upholding a state’s role in “regulating the medical
profession,” the Fifth and the Eighth Circuits, relying on the Casey plurality, have rejected First
Amendment challenges to informed consent laws where the required disclosures were truthful, not
misleading, and relevant to a patient’s decision to have an abortion. In contrast, the Second and Fourth
Circuits have reviewed abortion regulations that compel speech using more rigorous tests derived from
other First Amendment contexts. Per the Fourth Circuit, “[t]he fact that a regulation does not impose an
undue burden on a woman under the due process clause does not answer the question of whether it
imposes an impermissible burden on the physician under the First Amendment.” In deciding NIFLA, the
Ninth Circuit agreed with the Fourth Circuit that Casey does not supply the applicable First Amendment
standard, but held that the FACT Act survives more exacting scrutiny, as explained in more detail below.
Content-Based Restriction? The NIFLA challengers argue that the Court should strike down the FACT
Act as an impermissible “content-based” regulation. This argument is rooted in the Court’s 2015 decision
in Reed v. Town of Gilbert. In that case, the Court considered a town law that restricted the posting of
outdoor signs concerning certain subjects. The Court held that such “content-based laws”—which
regulate speech based on its subject matter, function, or purpose—“are presumptively unconstitutional
and may be justified only if the government proves that they are narrowly tailored to serve compelling
state interests.” In other words, content-based laws must survive “strict scrutiny,” a standard which, in
practice, the government can meet in only rare cases. The Ninth Circuit agreed with the NIFLA
challengers that the FACT Act is a content-based regulation, but reasoned that “not all content-based
regulations are subject to strict scrutiny” based on a prior en banc decision. The Ninth Circuit concluded
that “courts have routinely applied a lower level of scrutiny when states have compelled speech
concerning abortion-related disclosures,” citing pre-Reed decisions from other lower courts.

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Viewpoint-Based Restriction? The NIFLA challengers also argue that the FACT Act, in addition to
regulating a particular subject, targets their viewpoint on abortion. The Supreme Court considers
viewpoint discrimination “an egregious form of content discrimination.” According to the NIFLA
challengers, the FACT Act burdens only centers that oppose abortion by exempting providers in the
Family PACT program, which the NIFLA challengers say they cannot join because of their religious
opposition to offering certain contraceptive supplies that program participants are required to provide. In
contrast, the Ninth Circuit reasoned that the Act’s “narrow exceptions” do not “disfavor any particular
speakers,” but are included in the law for reasons unrelated to any particular viewpoint on abortion.
Professional Regulation? California argues that the requirement for licensed pregnancy centers
(providing notice of public programs) “falls well within the First Amendment’s tolerance for the
regulation of the practice-related speech of licensed professionals.” Relying on a prior decision, the Ninth
Circuit agreed and subjected the requirement to intermediate scrutiny, which—as its name suggests—is a
lower standard than strict scrutiny. The court considered whether the requirement “directly advances a
substantial governmental interest” and “is drawn to achieve that interest.” The Ninth Circuit ultimately
held that California’s requirement met this test because the state has substantial interests in “safeguarding
public health and fully informing Californians of the existence of publicly-funded medical services,” and
the requirement is narrowly drawn to reach pregnant women in a time-sensitive situation, without
expressing the state’s “preferences regarding prenatal care.”
The Ninth Circuit declined, however, to resolve what level of scrutiny applies to the notice requirement
for unlicensed pregnancy centers. Instead, the court held that the requirement to disclose a center’s
unlicensed status survives even the strictest test because California has a “compelling interest in
informing pregnant women when they are using the medical services of a facility that has not satisfied
[state] licensing standards,” and the requirement is “narrowly tailored” because it “merely states” that the
facility is unlicensed without expressing any view as to the quality of the services rendered there. The
NIFLA challengers counter that the requirement is not narrowly tailored because it forces them to include
the notice prominently in all advertisements in up to thirteen languages, diminishing their organizations’
messages.
Commercial Disclosure? In the proceedings below, California argued that the commercial speech
doctrine provides an independent basis for upholding the FACT Act, citing cases such as Zauderer v.
Office of Disciplinary Counsel. In Zauderer, the Supreme Court upheld an Ohio rule requiring attorneys
to include additional factual material about their advertised fee arrangements. The Court held that such
“disclosure requirements” do not violate the First Amendment if they are “reasonably related” to the
state’s interest in preventing consumer deception. California urged the Ninth Circuit to apply this
“rational basis” standard, arguing that both of the FACT Act’s requirements are akin those at issue in
Zauderer. However, the Ninth Circuit rejected this argument, reasoning that commercial speech “does no
more than propose a commercial transaction,” whereas the FACT Act “primarily regulates the speech that
occurs within the clinic.”
Nonprofit Speech? The NIFLA challengers argue that the professional and commercial speech doctrines
are inapplicable because they offer their services for free. They cite as their primary authority Supreme
Court cases prohibiting states from applying broad restrictions on the solicitation of legal services to
groups advancing political, as opposed to pecuniary, objectives. The NIFLA challengers seek to draw
from these cases a broader distinction between services rendered for “pecuniary gain” and those
performed as part of an organization’s “public interest advocacy.” The Ninth Circuit, while stopping short
of labeling the NIFLA challengers’ services “commercial,” rejected their argument, reasoning that their
nonprofit status “does not change the fact that they offer medical services in a professional context.”
California agrees, arguing that adopting different rules for professionals serving paying and nonpaying
clients would “create a vast population vulnerable to abuse and neglect.”
For discussion of the potential implications of the NIFLA case, proceed to Part II.

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Author Information

Victoria L. Killion

Legislative Attorney

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